State v Yasangara [2007] PGNC 244; N5478 (16 October 2007)

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CRIMINAL LAW – sentence – attempted murder – Criminal Code, Section 304 – guilty plea – offender used a bushknife to break down door of a house in which the victim was sleeping – offender motivated by belief that victim was having an affair with his wife – strong de facto provocation – sentence of 10 years.

A man pleaded guilty to attempted murder. He heard that his wife had left him and gone to live with another man. He went to the other man's house, broke down the door of the house and tried to get into the room where the other man was sleeping. He attacked that door with a bushknife, intent on getting inside the room and killing the other man. In the course of the attack the other man had one of his thumbs severed.

Manu Kovi v The State (2005) SC789
Peter Naibiri and Others v The State (1978) SC137)
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Elizah Ute (2004) N2550
The State v Frank Johnston and Others (No 2) (2004) N2586

1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to one count of attempted murder arising from the following facts. Late on the night of Friday 27 June 2003 the offender, Bulu Yasangara, went to his village, Guria, after arriving from Goroka. He had heard that his wife had left him and was living with the victim, Dickson Yamuru. Bulu went straight to Dickson's house, broke down the front door and tried to get into the room where Dickson was asleep. Bulu used a bushknife to cut down the door. Dickson tried to hold the door but Bulu cut him twice on his right hand, severing the thumb and cutting the pointer finger. Dickson called out to his brother, Samson, who came to his rescue. Bulu stopped what he was doing and ran away. As he was leaving Dickson's area he called out that he would kill Dickson. It was clear that if Samson had not arrived on the scene, Bulu would have proceeded to kill Dickson. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and entered a conviction for attempted murder under Section 304 of the Criminal Code.

2. The offender has a prior conviction for murder for which he was sentenced to 5 years imprisonment in 1990.

3. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

I had arrived at my village at 1.00 in the morning. I saw my two sons and they told me that their mother had left them and Dickson had taken her away. When I heard that story I was feeling very sorry for my children. I got a knife and went to Dickson's house and broke down the door. I say sorry for what I have done. I am now very worried for my two children. My former wife has already married.

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06). He made admissions in his police interview and co-operated with the police.

5. Bulu Yasangara is 43 years old. He has no formal education. He has been employed as a chainsaw operator at Goroka for a number of years with a logging company.

6. Ms Turi highlighted that there was strong de facto provocation as his children had been abandoned by his wife who entered a relationship with another man. She pointed out that though the victim was injured and suffered a serious injury the injury was not to a vulnerable part of the body.

7. Mr Ruarri submitted that this was a crime of violence, which could have had fatal consequences. It requires a deterrent sentence in the range of 4 or 5 years. The offender took the law into his own hands.

8. To determine the appropriate penalty I will adopt the following decision making process:

(b) with intent unlawfully to kill another person does any act, or omits to do any act that it is his duty to do, the act or omission being of such a nature as to be likely to endanger human life,

10. The maximum penalty is therefore life imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

11. As Kandakasi J pointed out in The State v Elizah Ute (2004) N2550 and The State v Frank Johnston and Others (No 2) (2004) N2586 the Supreme Court has not given sentencing guidelines for attempted murder so the National Court has a wide discretion available to it when fixing a sentence. I have carefully considered the sentencing principles his Honour applied in those cases. Since they were decided the Supreme Court has in Manu Kovi v The State (2005) SC789 given detailed sentencing guidelines for manslaughter, murder and wilful murder. It is useful to consider those guidelines when sentencing for attempted murder. Though it is arguable that the offence of attempted murder is equally as serious as murder or even more serious as it involves a specific (though unsuccessful) attempt to kill (see Peter Naibiri and Others v The State (1978) SC137), I think that because the result of the crime (the victim survives) is less serious than murder (the victim dies), the sentence for an attempted murder should generally be lower than for a murder (which can be regarded as an attempted murder brought to fruition). For the purposes of setting starting points for attempted murder it is appropriate to use the guidelines for murder derived from the Supreme Court's decision in Manu Kovi's case and set starting points at around 50% of the tariff, as shown in the following table.

TABLE 1: SENTENCING GUIDELINES FOR ATTEMPTED MURDER
USING A 50% QUOTIENT RE MURDER SENTENCES
FROM SUPREME COURT'S DECISION IN MANU KOVI'S CASE

No	Description	Details	Murder	Attempted Murder
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – little or no pre-planning – minimum force used – absence of strong intent to do grievous bodily harm.	12-15 years	6-8 years
2	Trial or plea – mitigating factors with aggravating factors.	No strong intent to do grievous bodily harm – weapons used – some pre-planning – some element of viciousness.	16-20 years	8-10 years
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Pre-planned – vicious attack – strong desire to do grievous bodily harm – dangerous or offensive weapons used, eg gun, axe – other offences of violence committed.	20-30 years	10-15 years
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offences.	Premeditated attack – brutal killing, in cold blood – killing of innocent, harmless person – killing in the course of committing another serious offence – complete disregard for human life.	Life imprisonment	15 years-life imprisonment

12. This was a vicious and surprise attack on a man who was, at the time he was attacked, unarmed and asleep. The manner of the attack showed that the offender had a strong desire to do grievous bodily harm and an offensive weapon was involved. I place this case within category 3, so the starting point is 10 to 15 years.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

13. In Elizah Ute's case the offender, an off-duty correctional officer, pleaded guilty to attempted murder of the officer-in-charge of a health centre by aiming and shooting at him with a loaded firearm, missing him by inches. He was sentenced to 25 years imprisonment. In the Johnston case three young offenders were found guilty after a trial of attempted murder of the victim by attacking with a grassknife and slingshot. The victim was seriously injured, losing permanent sight in one eye. The sentences imposed were 17, 19 and 20 years imprisonment.

14. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be 'strongly mitigating'. Others may be 'mildly mitigating'. The same goes for aggravating factors. Three sorts of considerations are listed. Numbers 1 to 7 focus on the circumstances of the incident. Numbers 8 to 12 focus on what the offender has done since the incident and how he has conducted himself. Numbers 13 to 15 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

18. After weighing all these factors (6 mitigating and 6 aggravating) I place great weight on the guilty plea, the full co-operation the offender gave the police and the strong element of de facto provocation. These factors pull the head sentence to the bottom of the starting point range. I impose a head sentence of 10 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

19. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is two months.

20. No. The court has not been informed of any moves towards compensation or reconciliation. No material has been presented that warrants suspension of any part of the sentence.

21. Bulu Yasangara, having been convicted of one count of attempted murder, is sentenced as follows:

Sentenced accordingly.
_______________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender

Length of sentence imposed	10 years
Pre-sentence period to be deducted	2 months
Resultant length of sentence to be served	9 years, 10 months
Amount of sentence suspended	Nil
Time to be served in custody	9 years, 10 months

National Court of Papua New Guinea

State v Yasangara [2007] PGNC 244; N5478 (16 October 2007)